J-A19040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ARTHUR T. : IN THE SUPERIOR COURT OF
MURPHY, JR., DECEASED : PENNSYLVANIA
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APPEAL OF: MICHAEL MURPHY :
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: No. 36 MDA 2022
Appeal from the Order Entered November 30, 2021
In the Court of Common Pleas of York County Orphans' Court at No(s):
6718-2267
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 27, 2022
Appellant Michael Murphy (“Appellant”) appeals from the order entered
in the Court of Common Pleas of York County, Orphans’ Court, which granted
the motion for summary judgment filed by Kevin A. Murphy, the executor of
the estate of Arthur T. Murphy, Jr. (“Decedent”), and denied the cross-motion
for summary judgment filed by Appellant, thus dismissing Appellant’s
objections and claim as a creditor against Decedent’s estate. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: On March 8,
2012, Decedent executed his Last Will and Testament (“the Will”), and on July
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* Former Justice specially assigned to the Superior Court.
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16, 2018, he executed a codicil to the Will in which he named his grandson,
Kevin A. Murphy (“the Executor”), as the executor of his estate.
On December 13, 2018, Decedent died. On December 18, 2018, the
Executor filed a petition for probate, and on that same date, the Register of
Wills granted letters testamentary to the Executor.
On June 24, 2019, Appellant, who is Decedent’s son, filed a “Notice of
Claim” against Decedent’s estate in the amount of $704,336.13. Appellant
also filed a praecipe for citation indicating that as a creditor he sought an
accounting of the estate.
On September 6, 2019, the Executor filed a response wherein he
indicated Appellant’s claim as a creditor of the estate was invalid. The Executor
noted “[t]he claim asserted by [Appellant] against the estate…is identical to a
claim which he unsuccessfully pursued as a Confession of Judgment
proceeding docketed at 2019-NO-000952.” Executor’s Response, filed 9/6/19,
at 2.
On October 16, 2019, the Executor filed an accounting and petition for
proposed distribution of the estate. Therein, the Executor acknowledged
Appellant claimed $704,336.13 as a creditor against the estate; however, the
Executor denied the validity of the claim and specified the estate would not
be paying the claim.
On November 13, 2019, Appellant filed an objection to the Executor’s
accounting and proposed distribution of the estate. Specifically, Appellant
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averred the Executor failed to make provisions for the payment of his claim
as a creditor against the estate. As evidence of his claim, Appellant attached
to his objection an exhibit: a February 8, 2000, Note, in which the Decedent
promised to pay his sons, Appellant and Arthur T. Murphy, III (“Tom”),1 a total
of $210,000.00, plus interest.2
On February 21, 2020, the Executor filed an answer with new matter to
Appellant’s objection to the Executor’s accounting and proposed distribution.
In the new matter, the Executor averred Decedent repaid the Note in full
during Decedent’s lifetime, and thus, Appellant had no valid claim as a creditor
against the estate. The Executor further averred Appellant’s claim was barred
by the doctrines of satisfaction, laches, and unclean hands.
Thereafter, following discovery, on October 27, 2021, the Executor filed
a motion for summary judgment and an accompanying brief. The Executor
averred that, even if there is no genuine issue of material fact that Decedent
entered into a $210,000.00 loan agreement as evidenced by a Note between
him and his two sons, Appellant and Tom, the undisputed competent evidence
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1Arthur T. Murphy, III’s nickname is “Tom,” and for the ease of discussion,
we shall refer to him as such.
2The Note indicates that Decedent borrowed a total of $210,000.00 from his
sons, Appellant and Tom, and Decedent agreed to repay each son
$105,000.00, plus 10% yearly interest.
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reveals Appellant’s claim as a creditor against the estate is invalid as a matter
of law since the loan was repaid during Decedent’s lifetime.
Specifically, the Executor indicated that, during discovery, all witnesses,
except Appellant, testified Decedent’s obligations under the Note had been
fully repaid prior to his death. The Executor admitted Appellant proffered his
own deposition testimony that Decedent did not fully repay the monies owed
to Appellant under the Note; however, the Orphans’ Court ruled during
discovery that Appellant’s testimony on this matter was inadmissible under
the Dead Man’s Statute.3 Thus, the Executor asserted that, absent any
admissible competent testimony that Decedent did not repay the Note in full
during his lifetime, the fact of full repayment is deemed undisputed.
Accordingly, the Executor sought summary judgment against Appellant
on the basis there is no genuine issue of material fact that Appellant has no
valid claim as a creditor, and, therefore, the estate is entitled to judgment as
a matter of law.
On November 15, 2021, Appellant filed an answer to the Executor’s
motion for summary judgment. Moreover, on this same date, Appellant filed
a cross-motion for summary judgment and an accompanying brief. Therein,
Appellant averred there is no genuine issue of material fact that, on February
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3 We note the Orphans’ Court granted the Executor’s motion in limine to
preclude Appellant from testifying under the Dead Man’s Statute. Appellant
filed an appeal to this Court from the order; however, this Court quashed the
appeal as being from a non-appealable interlocutory order.
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8, 2000, Decedent signed a Note indicating he owed his two sons, Tom and
Appellant, a total of $210,000.00, to be repaid by Decedent by February 8,
2020, or upon the Decedent’s death, whichever occurred first. Appellant also
averred there is no genuine issue of material fact that the Note provided for
an interest rate of 10% per annum, compounded daily, until paid in full.
Appellant admitted that his brother, Tom, testified in his deposition that
the Note had been “paid down to the tune of $105,000.00 for each brother”
in 2004 or 2005. See Appellant’s Cross-Motion for Summary Judgment, filed
11/15/21. However, Appellant averred there is no genuine issue of material
fact that this payment was for principal only, and thus, Decedent never paid
the interest as provided for under the Note. Therefore, Appellant contended:
14. Using a date most favorable to the estate, i.e., January 1,
2004 (which would reduce the interest to be paid), with the
payment of $105,000.00 on that date, the payoff of the Note with
interest would be $141,729.35.
15. As of Jan[uary] 1, 2004, there remained $36,729.00 in unpaid
interest.
16. In the time that has elapsed since Jan[uary] 1, 2004, to the
present, 215 months or 17.92 years have passed.
17. The sum now due is $201,005.00.
Id.
Accordingly, Appellant contended there is no genuine issue of material
fact that he has a valid claim as a creditor, and he is entitled to judgment as
a matter of law against the estate as it pertains to the unpaid interest on the
Note.
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On November 29, 2021, the Executor filed a reply brief in support of the
estate’s motion for summary judgment. Therein, the Executor indicated that
Tom’s undisputed deposition testimony established that any money Decedent
owed his sons, Tom and Appellant, under the Note, was repaid in its entirety
during Decedent’s lifetime. The Executor averred there was no genuine issue
of material fact that the payment made by Decedent was an all-inclusive, full
payout of any obligation Decedent had under the Note. The Executor noted
Appellant admitted in his cross-motion for summary judgment that his
testimony regarding whether the Note had been satisfied was barred by the
Dead Man’s rule.
By opinion and order entered on November 30, 2021, the Orphans’
Court granted the Executor’s motion for summary judgment and denied
Appellant’s cross-motion for summary judgment. The Orphans’ Court
dismissed Appellant’s objections to the accounting, as well as his claim as a
creditor against the estate.
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On December 29, 2021, Appellant filed a notice of appeal. The Orphans’
Court directed Appellant to file a Pa.R.A.P. 1925(b) order,4 Appellant timely
complied,5 and the Orphans’ Court filed a responsive Rule 1925(a) opinion.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
A. The [Orphans’] Court used the wrong dates in determining that
the Statute of Limitations had been violated.
B. The Court should not consider arguments waived or not
asserted by the parties.
C. The estate did not raise the defense of limitations in moving for
Summary Judgment.
D. Appellant’s right to the interest did not require him to testify.
E. The Court erred in ruling Appellant was disqualified by the Dead
Man’s Rule.
Appellant’s Brief at 4.
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4We note that, pertaining to the contents of the Orphan’s Court’s order, the
order complies with Pa.R.A.P. 1925(b)(3). Moreover, the certified docket
entries contain a notation indicating the order was properly served on
Appellant on January 3, 2021.
5 Appellant presented the following issues in his court-ordered Rule 1925(b)
statement (verbatim):
1. The Court erred in granting summary judgment in favor of
the estate.
2. The Court used an improper method to determine if the
petitioner’s conduct occurred within the period of the statute of
limitations.
3. The Court’s methodology in determining the case showed
favoritism to the estate.
4. The Court erred in not granting summary judgment in favor
of the petitioner.
Appellant’s Rule 1925(b) Statement, filed 1/14/22.
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Initially, we note that, aside from his first appellate issue, Appellant has
waived his claims on appeal. Specifically, it is well-established that any issue
not raised in a court-ordered Rule 1925(b) statement will be deemed waived
for appellate review. Commonwealth v. Lord, 553 Pa. 425, 719 A.2d 306
(1998). Further, an appellant’s concise statement must identify the errors
with sufficient specificity for the lower court to identify and address the issue
the appellant wishes to raise on appeal. See Jiricko v. Geico Ins. Co., 947
A.2d 206, 210 (Pa.Super. 2008). Failure to do so results in waiver of the claim
on appeal. See id.
In the case sub judice, Appellant has waived all appellate issues, except
for his first appellate issue, since he did not present the issues with specificity
in his court-ordered Rule 1925(b) statement. See id. Thus, we shall proceed
to an examination of Appellant’s first appellate issue only.
Appellant contends that, in granting summary judgment in favor of the
estate and denying his cross-motion for summary judgment, the Orphans’
Court used “the wrong dates” in determining Appellant did not present his
claim against the estate within the applicable statute of limitations.
In reviewing an order granting summary judgment, our
scope of review is plenary, and our standard of review is the same
as that applied by the [orphans’] court. Our Supreme Court has
stated the applicable standard of review as follows: An appellate
court may reverse the entry of a summary judgment only where
it finds that the lower court erred in concluding that the matter
presented no genuine issue as to any material fact and that it is
clear that the moving party was entitled to a judgment as a matter
of law. In making this assessment, we view the record in the light
most favorable to the nonmoving party, and all doubts as to the
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existence of a genuine issue of material fact must be resolved
against the moving party. As our inquiry involves solely questions
of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Jones v. Levin, 940 A.2d 451, 452–54 (Pa.Super.2007) (internal quotation
marks, modifications, and citations omitted).
Assuming, arguendo, Appellant is correct that the statute of limitations
was not implicated in this case, we conclude Appellant is otherwise not entitled
to relief. Specifically, Appellant fails to address the Orphans’ Court’s conclusion
that there is no genuine issue of material fact that Decedent’s obligation under
the Note was fully satisfied, and thus, Appellant is not entitled to relief as a
matter of law.
As the Orphans’ Court indicated:
[Appellant] has all but conceded that he is unlikely to prevail
in his claim under the Note. Thus, at the time of his [filing of the
cross-motion for summary judgment] his request for relief has
changed somewhat[.] [I]nstead of seeking repayment of the Note
and interest in full he now seeks only that interest to which he
[alleges he] would be entitled under the…general theory that the
Note at issue was paid off sometime in 2004 or 2005.
***
The filings in this case have made it abundantly clear that
without the testimony of [Appellant], which the [Orphans’ Court]
barred, [Appellant] could not even present competent evidence to
support his request for relief.
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Orphans’ Court Opinion, filed 11/30/21 (unpaginated).
Further, the Orphans’ Court explained:
It is Appellant’s inability to testify that he was not paid back
which undoubtedly leads to the entry of summary judgment in
favor of the estate. As stated by [the Orphans’ Court], Appellant
cannot bring forward a competent witness to testify he was not
paid back on the Note. The estate, on the other hand, brought
forward a competent witness whose now undisputed testimony is
that Appellant was in fact paid back under the Note.
Thus, the burden shifts to Appellant to show evidence of a
factual dispute. He did not and cannot do so. In fact, in a letter
dated October 19, 2021, and made part of the record, Appellant’s
counsel stated, “I concede, on the state of matter as of today,
[Appellant] will most likely not be able to establish entitlement to
the $105,000.00 [of the Note].” When his own counsel conceded
Appellant cannot establish his case, he cannot now claim it was
error for this Court to enter summary judgment against him.
Orphans’ Court Opinion, filed 1/21/22 (unpaginated) (citations to record
omitted).
We agree with the Orphans’ Court’s sound analysis. Here, the Executor
testified that his father, Tom, who was one of the parties to the Note,
confirmed that any obligation Decedent had under the Note was satisfied
before his death. See Executor’s Deposition, dated 3/19/20, at 22, 39.
Moreover, Tom testified the Note at issue “was paid off in full.” Tom’s
Deposition, dated 3/19/20, at 15. He indicated that, at the time of Decedent’s
death, there was “not one penny” owed. Id. at 16. He testified he told
Appellant his claim against the estate was “bullshit” because the Note “was
paid off” by Decedent before his death. Id. at 25.
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Furthermore, in his deposition, Tom shed light on the circumstances
surrounding Decedent’s issuing of the Note to his sons. Specifically, Tom
suggested the “Note” was not evidence of a valid loan between the parties but
was used by Decedent to gift money to his sons before his death. 6 In this
vein, Tom testified that, in 2000, he gave Decedent a check for $210,000.00.;
however, at the same time, Decedent gave him a check for approximately
$223,000.00. Id. at 12-15. He indicated that later, in 2004 or 2005, the
Decedent gave him and Appellant each $105,000.00. Id.
Absent any competent evidence to the contrary, we agree with the
Orphans’ Court that there is no genuine issue of material fact that Appellant
was not owed any money, principal or interest, under the Note. Jones,
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6 The estate attached as an exhibit to Tom’s deposition a handwritten
statement made by Tom, and he was questioned about his handwritten
statement during his deposition. In his statement, Tom indicated the money
at issue was never actually a loan between father and sons. See Tom’s
Deposition Exhibit, dated 3/19/20. Rather, Tom indicated Decedent gave him
and Appellant a check for $223,320.63, and then Decedent asked Tom to give
him back a check for $210,000.00, thus allowing the brothers to keep and
split the difference as “interest.” Id. Tom indicated that, at the same time,
Decedent gave Appellant and him a “Note” to suggest there had been a loan
of $210,000.00 from Appellant and Tom to Decedent, subject to interest. Id.
Tom indicated the “Note was for the purpose of proving where the $6,600.00
came from in case of an audit on [the brothers’] finances.” Id. Later, in 2004
or 2005, Decedent wrote Appellant and Tom each a check for $105,000.00.
Id. Tom indicated the Decedent told them that, “even though the Note was
paid off, he would not mark it as such because he would continue to write
[them] checks every three or four years with no tax consequences.” Id. Thus,
Tom suggested the “Note” was not actually a loan or “really in force”[;] but
rather, it was used by Decedent as a way to funnel money to his sons in an
attempt to avoid paying taxes. Id.
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supra. Thus, as a matter of law, the Orphans’ Court did not err in granting
summary judgment in favor of the estate, denying Appellant’s cross-motion
for summary judgment, and dismissing Appellant’s objection and claim as a
creditor against the estate. Id.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2022
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